Citation Nr: 1303122
Decision Date: 01/30/13 Archive Date: 02/05/13
DOCKET NO. 05-06 531A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides.
2. Entitlement to service connection for renal disease, to include as secondary to diabetes mellitus, type II.
3. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II.
4. Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
The appellant and her daughter
ATTORNEY FOR THE BOARD
J.M. Seay, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1968 to June 1974. The Veteran died in July 2009 and the appellant is his surviving spouse.
This case comes before the Board of Veterans' Appeals (Board) on appeal from the August 2004 and April 2010 decisions of the Department of Veterans Affairs (VA) Regional Office (RO), in Cleveland, Ohio.
In October 2012, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge. The Veteran testified at a local hearing before a Decision Review Officer in December 2004. The transcripts of both hearings are associated with the claims file.
The August 2004 rating decision denied the Veteran's claim for service connection for diabetes mellitus and claimed secondary conditions of heart disease and kidney disease. The Veteran submitted a notice of disagreement with respect to the denial of service connection for diabetes mellitus. The RO issued a statement of the case in January 2005. The Veteran timely appealed in February 2005. The RO subsequently included the issues of service connection for renal disease and hypertension as mentioned by the Veteran in an April 2006 statement. However, the Veteran died in July 2009. In August 2009, the Veteran's surviving spouse submitted a request for substitution to continue the Veteran's appeal. In January 2012, the RO granted the appellant's request for substitution. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, governing substitution in case of death of a claimant who dies on or after October 10, 2008). Accordingly, the Board recognizes the substitution of the Veteran's surviving spouse.
Finally, the Board acknowledges that the August 2004 rating decision denied service connection for diabetes mellitus, type II, and the claimed secondary conditions of kidney disease and a heart condition. The Veteran submitted a notice of disagreement with respect to the denial of service connection for diabetes mellitus, type II, but did not mention the heart disorder. The subsequent statement of the case and supplemental statements of the case did not mention a heart disorder. The supplemental statements of the case added the issue of service connection for diabetes mellitus and complications to include hypertension and renal disease due to the Veteran's April 2006 statement requesting service connection for hypertension and renal disease. The Veteran did not request service connection for the heart disorder. The Veteran's VA Form 9 with attachment only noted the Veteran's request for service connection for diabetes mellitus, hypertension, and renal disease, and did not include any mention of a heart disorder. 38 C.F.R. § 20.302. Therefore, the issue of service connection for a heart disorder is not before the Board.
The issues of entitlement to service connection for hypertension and service connection for the cause of the Veteran's death are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran set foot in Vietnam and diabetes mellitus, type II, is therefore presumed to have been incurred in active service.
2. The Veteran's renal disease has been related to his service-connected diabetes mellitus, type II.
CONCLUSIONS OF LAW
1. Resolving the benefit of the doubt in favor of the Veteran, diabetes mellitus, type II, is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).
2. Renal disease is proximately due to the Veteran's service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In this decision, the Board has granted entitlement to service connection for diabetes mellitus, type II and renal disease, which constitutes complete grants of the claims. Therefore, no discussion of VA's duty to notify or assist is necessary.
If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who is eligible to receive accrued benefits under 38 U.S.C.A. 5121a may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A. In this case, the appellant filed a request for substitution in August 2009, clearly within one year of the Veteran's death in July 2009 and the RO recognized the appellant as a substitute for the Veteran in the January 2012 supplemental statement of the case.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a).
For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b).
Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d).
A veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). If a veteran was exposed to certain herbicides during active service, type 2 diabetes will be presumed to have been incurred in service if manifest to a compensable degree, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(1), (2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).
"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 307(a)(6)(iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008). A Veteran who never went ashore from a ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged herbicide exposure. Haas, 525 F.3d at 1193-1194. See also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196.
With regard to inland waterways, in order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii). See Haas, 525 F.3d at 1187-1190; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id.
Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1).
VA's Secretary has determined that a presumption of service connection based on exposure to certain herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341 -346 (1994); 61 Fed. Reg. 41442 -41449 and 57586-57589 (1996); 67 Fed. Reg. 42600-42608 (2002); 68 Fed. Reg. 27630-27641 (2003); 72 Fed. Reg. 32395-32407 (2007).
Diabetes Mellitus, type II
The Veteran claimed that he had diabetes mellitus due to his exposure to herbicides (Agent Orange) during his period of active service. He stated that he served aboard the ship, USS Mars, which docked at Da Nang and Cam Ranh Bay. He stated that he went ashore at Cam Ranh Bay when his ship had a party. The claims file includes pictures including one reportedly taken by a Navy photographer of his crew at a beach party on shore at Cam Ranh Bay.
First, the medical evidence of record shows that the Veteran has been diagnosed with diabetes mellitus, type II.
The Veteran's DD form 214 shows that the Veteran served in the United States Navy from December 1968 to June 1974 during the Vietnam era and received the Vietnam Service Medal and Vietnam Campaign Medal. The Vietnam Service Medal was awarded to veterans who served between July 1965 and March 1973 in Vietnam, Thailand, Laos, or Cambodia in direct support of operations in Vietnam. See U.S. Dep't of Defense Manual of Military Decorations and Awards, Appendix D at D-20, July 1990. The Vietnam Campaign Medal was awarded to those personnel who (1) served in the Republic of Vietnam for six months during a specified period, or (2) served outside the geographical limits of the Republic of Vietnam but contributed direct combat support to the Republic of Vietnam and Armed Forces for 6 months, or (3) served in the Republic of Vietnam or outside its geographical limits for less than six months but were wounded, captured or killed. Id. Based on the above definitions, the Veteran's receipt of the Vietnam Service Medal and Vietnam Campaign Medal do not provide proof of active service inside the Republic of Vietnam.
However, the Veteran's personnel records show that he served on the USS Mars. The July 2004 response from the National Personnel Records Center (NPRC) noted that the Veteran was aboard the USS Mars which was in the official waters of the Republic of Vietnam on the following dates: December 17, 1970 to December 28, 1970, January 14, 1971 to January 21, 1971, February 6, 1971, February 12, 1971 to February 25, 1971, March 7, 1971 to March 16, 1971, March 23, 1971 to April 1, 1971, April 20, 1971 to April 28, 1971, and May 7, 1971 to May 11, 1971. The NPRC explained that the personnel records did not contain enough information to make a definitive statement regarding in country service. However, the appellant also submitted a VA compiled list, updated January 6, 2011, of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents. The list identified the USS Mars as a vessel operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels went ashore regularly with supplies or personnel. The list indicated that the USS Mars conducted numerous on shore supply replenishments at Da Nang, Cam Ranh Bay, Vung Tau, and An Thoi from July 1965 to November 1972, with evidence of crew members going ashore.
Given the evidence that the USS Mars operated on the coastal waters with evidence of crew members going ashore and the Veteran's statements that he went ashore at Cam Ranh Bay, the Board finds it reasonable that the Veteran set foot in Vietnam. There is nothing to refute the Veteran's statements of going ashore at Cam Ranh Bay and the Veteran's statements are considered more believable due to the information regarding USS Mars on VA's compiled list. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as the quality or power of inspiring belief. . . . Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence.").
Therefore, the Board concludes that the Veteran set foot on the land mass of Vietnam during the Vietnam era. Because the Veteran was diagnosed as having diabetes mellitus type II, service connection for diabetes mellitus, type II, is granted on a presumptive basis due to presumed exposure to herbicides. 38 C.F.R. §§ 3.307, 3.309.
Renal Disease
The Veteran contended that his renal disease was caused by his diabetes mellitus, type II.
Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).
The private medical records show that the Veteran was diagnosed with end stage renal disease. As noted above, the diabetes mellitus, type II, is now service connected. Therefore, the question that remains is whether the Veteran's renal disease was proximately caused or aggravated by his service-connected diabetes mellitus, type II.
In a February 2004 statement, the Veteran's private physician, Dr. Romeo Miclat, stated that the Veteran's end stage renal disease was due to diabetes mellitus. This medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).
Based on the foregoing, the Board finds that the evidence of record is at the very least in relative equipoise as to whether the renal disease was proximately due to the Veteran's service-connected diabetes mellitus, type II. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that renal disease is proximately caused by the service-connected diabetes mellitus and service connection for renal disease is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310.
ORDER
Entitlement to service connection for diabetes mellitus, type II, is granted.
Entitlement to service connection for renal disease is granted.
REMAND
The Board finds that additional development is required prior to adjudication of the claims for service connection for hypertension and service connection for the cause of the Veteran's death.
First, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, when adjudicating a claim for dependency and indemnity compensation, VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime. The Court concluded that, in general, section 5103(a) notice for a dependency and indemnity compensation case must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of the Veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. As noted above, the claims for service connection for diabetes mellitus and renal disease have been granted. Therefore, a new notice letter should be provided to the appellant.
The certificate of death shows that the Veteran died at the Cleveland Clinic Foundation in July 2009. However, these medical records are not associated with the claims file. On remand, VA should request that the appellant provide authorization to enable it to obtain any additional private medical records, to include records from the Cleveland Clinic Foundation.
The appellant testified that the Veteran was in receipt of Social Security Administration (SSA) benefits. Records from the Social Security Administration have not been obtained. When VA has notice of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). Thus, the claims must be remanded so that the records associated with the Veteran's SSA benefits may be obtained.
The appellant contends that service connection for hypertension is warranted on the basis of secondary service connection. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The record shows that the Veteran has been service-connected for diabetes mellitus, type II and renal disease. The medical evidence also includes multiple diagnoses of hypertension. However, there is no medical opinion with respect to the etiology of the Veteran's hypertension. Therefore, the Board finds that a VA opinion is required to determine the etiology of the Veteran's hypertension. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).
The appellant contends that the Veteran's cause of death is related to his service-connected disabilities. To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. Id. For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
The certificate of death shows that the Veteran died in July 2009. The immediate cause of death was listed as cardiogenic shock due to (or as consequence of) acute myocardial infarction. End stage renal disease was listed as a significant condition contributing to death but not resulting in the underlying cause.
As discussed in the decision above, service connection has been granted for diabetes mellitus, type II, and renal disease. The certificate of death shows that the Veteran's renal disease was a significant condition contributing to the Veteran's death, but not resulting in the underlying cause of death. However, there is no medical opinion addressing the etiology of the cause of the Veteran's death. It would be helpful if a medical opinion addressed whether a service-connected disability contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. Therefore, an opinion should be requested on remand. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).
Accordingly, the case is REMANDED for the following action:
1. Send the appellant and her representative a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), Hupp v. Nicholson, 21 Vet. App. 342 (2007). The letter should include notice of the evidence necessary to establish a claim for service connection for the cause of the Veteran's death, and should include (1) a statement of the conditions for which the Veteran was service- connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected.
The letter must also provide the appellant with authorization forms to obtain records from any health care provider that treated the Veteran, to include the Cleveland Clinic Foundation. Once signed releases are received from the appellant, obtain all private treatment records which have not been obtained already. Any negative should be included in the claims file and the appellant should be notified of any negative response in accordance with 38 C.F.R. § 3.159(e).
2. Requests records from the Social Security Administration in regard to the Veteran's application for benefits, the decision awarding benefits, and the records considered in deciding the claim for benefits. If the records do not exist or further efforts to obtain the records would be futile, notify the appellant in accordance with 38 C.F.R. § 3.159(e).
3. Request a medical opinion as to the etiology of the Veteran's hypertension. The claims file and a copy of this remand must be provided to the physician. The physician should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any hypertension was caused by active service. The examiner should also provide an opinion as to whether it is at least as likely as not that the hypertension was caused or aggravated by a service-connected disability. (The Veteran was service-connected for diabetes mellitus, type II and renal disease).
Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability.
All opinions expressed must be supported by complete rationale.
4. The RO/AMC must adjudicate the issue of entitlement to service connection for hypertension to include as secondary to a service-connected disability.
5. Thereafter, the RO/AMC should obtain a medical opinion regarding the cause of the Veteran's death. The claims file and a copy of this remand should be forwarded to a VA physician for review prior to completion of the requested medical opinion.
Following a review of the claims file and all available medical records, the physician should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any service-connected disability either alone or in combination with some other condition was the immediate or underlying cause of death or was etiologically related thereto or contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death.
All opinions expressed must be supported by complete rationale.
6. Then, readjudicate the claims. If any benefits sought on appeal remain denied, issue the appellant and her representative a supplemental statement of the case and allow a reasonable opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs